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Estate Planning

We can help you with the following areas related to Estate Planning:

  • Power of Attorney
  • Wills
  • Living Wills
  • Revocable Trust
  • Probate
  • Guardianship/ Conservatorship

What is a power of attorney?

A Power of Attorney (POA) is a legal document containing a written authorization to delegate power and authority to act on behalf of another person. The person who signs the POA is called the Principal. The Principal gives legal authority to another person (the Agent or Attorney-in-Fact) to make decisions on behalf of the Principal. There are two main categories: financial and medical. All of the POA documents discussed below require the Principal to execute (sign) the document while they are of sound mind and can fulfill the mental capacity requirements under Arizona law.

What happens if I don’t have a power of attorney and something happens to me?

If a POA was not put in place or is not valid for some reason and an individual is unable to manage his or her personal, financial and/or health decisions then a court proceeding would be started to ensure the individual is protected and taken care of. This process is called Guardianship and Conservatorship. This process typically takes 6 months and costs approximately $4,000.00. All funds would be frozen until the Court Order giving control to the Conservatorship, which could likely cause a great deal of stress and frustration for your loved ones.

What is a will?

A will, sometimes called a “last will and testament” or “pour over will” is a document that states your final wishes and specifically states what happens with your property after you pass away. This document will name the person responsible to handle your affairs after you pass away, the guardians for your children, provide for pets, designate beneficiaries to personal property like jewelry and vehicles. If you have a trust created (see below) then your will states anything not contained in the trust will “pour over”; into the trust.

What is a living will?

A living will, sometimes called an advance health care directive, is a legal document that provides specific instructions regarding the medical care a person wishes to receive (or not receive) if he or she becomes incapacitated or seriously ill and cannot communicate their wishes themselves. It is their final expression or statement to the family and medical care providers regarding their refusal of medical or surgical treatment; and their acceptance of the consequences. The person usually wishes to die naturally, with only the administration of medication or the performance of any medical procedures considered necessary to provide them with comfort and care or to alleviate pain, even though the medication or procedure may shorten their remaining life. A Living Will is the document that helps the patient weigh the quality of his life against what it will take to continue their life

Is this a different document than the Last Will and Testament?

Yes. This is a completely different.

When does the Living Will activate?
For the Living Will declaration to take effect, the attending physician (sometimes two physicians) must determine that there can be no recovery from the irreversible coma, terminal or vegetative condition, and that either death is imminent, or the person can no longer experience a meaningful life.

What are life-prolonging procedures?
Life-prolonging procedures include any procedure that would serve only to artificially prolong the dying process such as nutrition and hydration administered by invasive procedures; antibiotics; ventilators, pacemakers, renal dialysis, or any other mechanical devices designed to assist the functioning of organs; transfusion of blood and blood products; and cardiac or cardiopulmonary resuscitative procedures.

Can the Living Will “release” the Agent from the decisions made?
Yes. Release in this context is a legal word essentially meaning the person “gives up” or releases their legal right (including the Estate of the deceased) to file a lawsuit against the person for their alleged wrongdoing. The person making the Living Will should release and hold harmless any person who, in good faith, terminates life- sustaining procedures in accordance with the guidelines of the Living Will declaration.

Should the Living Will contain a statement of intent?
A statement of intent is another declaration of the persons mental ability and their desires to be medically treated in a specific way if they cannot express their desires. Everyone has the legal right to refuse medical or surgical treatment. Usually, the statement of intent will request that this document be accepted and honored by the family and physician in accordance with their personal beliefs.

Is a Living Will the same as a DNR (Do Not Resuscitate)?
No. A DNR is a completely separate document, which specifically states the conditions related to your preference not to be resuscitated by cardio pulmonary resuscitation (CPR), so that if your heart stops, you will not be revived.

Should the Living Will be witnessed and notarized?
Yes. It is always good practice to have the Living Will witnessed by two (2) individuals and a notary that declare the person signed the document in their presence. They should also further state that the witnesses are not related to person by blood, marriage, or adoption, are not heirs to the estate, and are not responsible for paying the health care costs.

Do I put my request for funeral arrangements such as burial or cremation in the Living Will?
No. Usually this request is contained in a document titled Memorial Instructions or Memorial Letter. This document could include specific information on religious beliefs to be followed, private vs. public attendees, clergy, pallbearers, scripture selections, flowers vs donations, music selections, and specific pictures to be shown. Most funeral directors/businesses allow for you to make pre-arrangements.

Do I include organ and tissue donation in the Living Will?
No. This request is included in several different documents, such as a Medical Power of Attorney. You can also make note on the back of your driver’s license through the Motor Vehicle Department and/or you can get an organ donor card.

 

What is a revocable living trust?
A trust is almost like your own personal company that owns substantially all of your assets. As trustee of your trust, you have 100% control over the assets. You manage the trust estate assets for your benefit. When you die, your trust provides who takes your place as trustee. This successor trustee immediately has control of the assets

in the trust estate without going to court to get that authority. Most clients with children should have a trust to avoid any delay in caring for the children and a trust avoids the expense of a conservatorship mentioned above.

What is probate?
Probate refers to a method by which your property is administered and processed through the court system after you die. The probate court appoints a personal representative (also known as an executor) who then has authority to access bank and investment accounts, sell real estate, pay creditors, and to distribute the estate assets in accordance with the will or intestate succession law (your family members). The average probate case in Arizona takes about a year and costs about $5,000.00.

If I have a will, does that prevent probate? No.

If I have a revocable living trust, does that prevent probate?
Yes. But it is imperative that all assets are held in the trust name. Any mistake will likely result in a probate.

Are there other ways to avoid probate?
Yes. If you own real property “jointly” with another person then your interest automatically transfers without going to court. Or, you could execute a beneficiary deed, which transfers the interest in the real property one a death certificate is recorded with recorder’s office. If you have a money account, make sure there is a beneficiary or payable on death beneficiary and you will avoid probate. Not everyone needs a trust, but everyone does need a “plan.”

Do you need to hire an attorney for estate planning?
The idea of taking care of your affairs when you have the power to do so is based on making sure your wishes are carried out and making it as easy as possible for your loved ones after you have passed away. It is very important to “get it” right because it will take 10x times longer and more expensive to fix if it isn’t and the results could be completely different than your wishes. There are paralegal services offering estate planning and there are even more online websites offering these services. The price difference really isn’t that much between paralegals, lawyers and the websites creating these documents. Each person determines the value of legal services; similar to other services across all industries. Would you build your own home? Would you hire a person knowing they are not a licensed contractor to build your home? Knowing how much time and money it took for you to save your money to build your home, wouldn’t you want to make sure your investment is protected, and your wishes are fulfilled? Some people see the value in engaging a professional and some do not.

What is the average cost?
The average cost of a trust and all of the ancillary documents that go with it such as powers of attorney, will, deed, etc. is approximately $1,500.00 for married couples. Each estate plan is different, and the cost depends on many factors, but the numbers above should serve as a guide. In some situations, there are additional terms or business considerations the client would like included, which takes more time, and more money.

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